SMT. SHYAMLATA PODDAR, MUMBAI v. ASST.C.I.T.,18(2), MUMBAI

ITA 6135/MUM/2008 | 2001-2002
Pronouncement Date: 21-05-2010 | Result: Allowed

Appeal Details

RSA Number 613519914 RSA 2008
Assessee PAN AACPP2349H
Bench Mumbai
Appeal Number ITA 6135/MUM/2008
Duration Of Justice 1 year(s) 7 month(s) 11 day(s)
Appellant SMT. SHYAMLATA PODDAR, MUMBAI
Respondent ASST.C.I.T.,18(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 21-05-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 21-05-2010
Date Of Final Hearing 14-05-2010
Next Hearing Date 14-05-2010
Assessment Year 2001-2002
Appeal Filed On 10-10-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E MUMBAI BEFORE SHRI R.S.SYAL AM AND SHRI VIJAY PAL RAO JM ITA NO.6135/MUM/2008 : ASST.YEAR 2001-2002 SMT.SHYAMLATA PODDAR TRADE WORLD B-WING 3 RD FLOOR KAMLA CITY S.B.MARG LOWER PAREL MUMBAI 400 013. PA NO.AACPP2349H. VS. THE ASSTT.COMMISSIONER OF INCOME-TAX CIRCLE 18(2) MUMBAI. (APPELLANT) (RESPONDENT) ITA NO.7107/MUM/2008 : ASST.YEAR 2001-2002 THE ASSTT.COMMISSIONER OF INCOME-TAX CIRCLE 18(2) MUMBAI. VS. SMT.SHYAMLATA PODDAR TRADE WORLD B-WING 3 RD FLOOR KAMLA CITY S.B.MARG LOWER PAREL MUMBAI 400 013. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI K.R.DAS ASSESSEE BY : SHRI SANJIV M.SHAH O R D E R PER R.S.SYAL AM : THESE TWO CROSS APPEALS ONE BY THE ASSESSEE AND THE OTHER BY THE REVENUE ARISE OUT OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 9.9.2008 IN RELATION TO THE ASSESSMENT YEAR 2001-20 02. 2. FIRST GROUND OF THE ASSESSEES APPEAL IS AGAINST THE VALIDITY OF REASSESSMENT. BRIEFLY STATED THE FACTS OF THIS GROUND ARE THAT TH E ORIGINAL ASSESSMENT IN THIS CASE WAS COMPLETED U/S.143(3) ON 29.10.2002 DETERMINING TOTAL INCOME AT RS.90 89 240. THEREAFTER NOTICE WAS ISSUED U/S.148 ON 8.11.2006 P URSUANT TO WHICH THE PRESENT ASSESSMENT WAS COMPLETED U/S.143(3) R.W.S. 147 DET ERMINING TOTAL INCOME AT RS.1 22 78 510. THE ASSESSEE CHALLENGED THE INITIAT ION OF REASSESSMENT PROCEEDINGS BEFORE THE LEARNED CIT(A) BUT WITHOUT SUCCESS. ITA NOS.6135 & 7107/MUM/2008 SMT.SHYAMLATA PODDAR. 2 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE LEARNED A.R. HAS PLACED ON RECORD A COP Y OF THE REASONS LEADING TO THE REOPENING OF THE ASSESSMENT. THE FIRST REASON GIVEN BY THE ASSESSING OFFICER FOR INITIATION OF REASSESSMENT IS THAT THE INCOME OFFE RED BY THE ASSESSEE UNDER THE HEAD `INCOME FROM HOUSE PROPERTY AT RS.2 20 500 LEASED TO SHRI VINODKUMAR M.PODDAR A RELATIVE AT THE RATE OF RS.20 PER SQ.F T. PER MONTH WAS INADEQUATE IN THE LIGHT OF THE PROCEEDINGS FOR ASSESSMENT YEAR 2004-2 005 IN WHICH THE MARKET RATE OF RENT OF THAT PREMISES WAS FOUND TO BE MUCH HIGHER. BASED ON THAT IT WAS OBSERVED BY THE A.O. THAT THERE WAS ESCAPEMENT OF INCOME TO THE TUNE OF RS.4 41 000. THE SECOND REASON OF THE ASSESSING OFFICER IS THE SUFFE RING OF LOSS IN MUTUAL FUND DUE TO THE SALE AND PURCHASE OF MUTUAL FUNDS WITHIN A V ERY SHORT SPAN OF PERIOD RESULTING INTO EXEMPT INCOME U/S.10(33) AND SHORT TERM CAPITAL LOSS. THE OTHER PART OF THE SAME REASON IS THAT THE PURCHASE AND SALE OF UNITS OF J.M.MUTUAL FUND AND KOTHARI PIONEER PRIMA FUND WERE AFFECTED OUT OF LOS S TAKEN BY THE ASSESSEE FROM SIYARAM PODDAR FINANCE AND TRADING LIMITED AND INDU SIND BANK LIMITED WHICH HAD CHARGED INTEREST OF RS.72 370 AND RS.2 13 041 R ESPECTIVELY. IN THE LIKE MANNER INTEREST PAID BY THE ASSESSEE AMOUNTING TO RS.29 07 1 AND RS.49 764 WAS ALSO NOT PROPERLY REFLECTED WHICH WAS CLAIMED AS DEDUCTION F ROM INCOME FROM OTHER SOURCES. THE THIRD REASON TAKEN NOTE OF IN THE ASSE SSMENT IS THE INCOME OF MASTER RISHABH PODDAR WHICH IS CLUBBED IN THE HANDS OF TH E ASSESSEE IN WHICH DIVIDEND INCOME OF RS.5.99 LAKHS WAS CLAIMED AS EXEMPT U/S.1 0(33) BUT NO DETAILS OF PURCHASE AND SALE OF UNITS WERE SUBMITTED BY THE AS SESSEE. ON THE STRENGTH OF THESE REASONS THE ASSESSING OFFICER INITIATED THE REASSES SMENT PROCEEDINGS. 4. IT IS SEEN THAT THE ORIGINAL ASSESSMENT IN THIS CASE WAS COMPLETED U/S.143(3). ACCORDING TO THE FIRST PROVISO TO SECTION 147 WHERE AN ASSESSMENT WAS COMPLETED U/S.143(3) NO ACTION CAN BE TAKEN U/S.147 AFTER TH E EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR UNLESS ANY INC OME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REAS ON OF THE FAILURE ON THE PART OF ITA NOS.6135 & 7107/MUM/2008 SMT.SHYAMLATA PODDAR. 3 THE ASSESSEE TO MAKE A RETURN U/S.139 ETC. OR TO DI SCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THAT YEAR. A DMITTEDLY THE FOUR YEARS PERIOD FROM THE END OF THE RELEVANT ASSESSMENT YEAR EXPIRE D ON 31.3.2006 AND AS PER THE ASSESSMENT ORDER NOTICE U/S.148 WAS ISSUED ON 8.11. 2006 WHICH MEANS THAT SUCH NOTICE WAS ISSUED AFTER THE EXPIRY OF FOUR YEARS FR OM THE END OF THE RELEVANT ASSESSMENT YEAR. NOW WHEN SUCH NOTICE IS ISSUED AFT ER THE EXPIRY OF FOUR YEARS PERIOD IT HAS TO BE DEMONSTRATED BY THE AO THAT TH E ESCAPEMENT OF INCOME IN RESPECT OF WHICH NOTICE IS PROPOSED TO BE ISSUED U/ S.148 SHOULD BE DUE TO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRUL Y ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT. 5. WE WILL PROCEED TO EXAMINE THE REASONS T AKEN NOTE OF BY THE ASSESSING OFFICER FOR REOPENING TO ASCERTAIN WHETHER THERE IS ANY FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL F ACTS NECESSARY FOR HIS ASSESSMENT. THE FIRST REASON IS THE SHOWING OF RENTAL INCOME AT RS.20 PER SQ.FT. PER MONTH WHICH IN THE OPINION OF THE ASSESSING OFFICER SHOULD HAVE BEEN AT RS.60 PER SQ.FT. PER MONTH IN VIEW OF THE REASONS GIVEN BY HIM IN THE AS SESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2004-2005. IT IS NOTICED THAT FOR A SSESSMENT YEAR 2001-2002 THE ASSESSING OFFICER ISSUED REASSESSMENT NOTICE IN THE CASE OF SMT.SANGEETA PODDAR ANOTHER CO-OWNER OF THE PROPERTY AND FRAMED ASSESS MENT BY TAKING ANNUAL RENTAL VALUE AT RS.60 PER SQ.FT. PER MONTH. THE LEARNED CI T(A) IN THAT CASE REDUCED SUCH ESTIMATE TO RS.40 PER SQ.FT. PER MONTH. HOWEVER WHE N THE MATTER CAME UP BEFORE THE TRIBUNAL THE VIEW OF THE LEARNED CIT(A) HAS BE EN SET ASIDE AND IT HAS BEEN HELD THAT THE INCOME OFFERED BY THAT ASSESSEE AT THE RAT E OF RS.20 PER SQ.FT. PER MONTH BE ACCEPTED TO BE CORRECT. SUCH OTHER CASE OF SMT.SA NGEETA PODDAR IN ITA NO.6134/MUM/2008 WAS ARGUED SIMULTANEOUSLY IN RESPE CT OF WHICH WE HAVE PASSED A SEPARATE ORDER. IN VIEW OF THESE FACTS I T BECOMES APPARENT THAT THIS REASON OF THE ASSESSING OFFICER IS NOT SUSTAINABLE FOR REA SSESSMENT. ITA NOS.6135 & 7107/MUM/2008 SMT.SHYAMLATA PODDAR. 4 6. THE SECOND REASON IS THE LOSS IN MUTUAL FUND AND THE THIRD REASON IS LOSS FROM MUTUAL FUND OF MASTER RISHAB PODDAR WHOSE INCOME W AS CLUBBED IN THE HANDS OF THE ASSESSEE. IT IS FOUND THAT THE ASSESSING OFFICE R IN THE CASE OF SMT.SANGEETA PODDAR MADE SIMILAR ADDITION BY NOT ACCEPTING THE L OSS FROM THE SALE OF UNITS OF MUTUAL FUNDS SUSTAINED BY THAT ASSESSEE AND HER SON S. THE TRIBUNAL VIDE ITS ORDER IN ITA NO.7106/MUM/2008 HAS UPHELD THE VIEW TAKEN BY T HE LEARNED CIT(A) DELETING SUCH ADDITION ON THE BASIS OF THE JUDGMENT OF THE H ONBLE JURISDICTIONAL HIGH COURT IN CIT VS. WALLFORT SHARE & STOCK BROKERS LTD. [(2009) 310 ITR 421 (BOM.)] . IT THEREFORE BECOMES APPARENT THAT ON THE BASIS OF SI MILAR FACTS NO CONTRARY VIEW CAN BE TAKEN. 7. STILL ANOTHER REASON CONSIDERED BY THE AS SESSING OFFICER IS CLAIM OF DEDUCTION OF INTEREST PAID AGAINST `INCOME FROM OTH ER SOURCES. ON THIS ISSUE WE FIND THAT WHEN ALL THE NECESSARY FACTS WERE DISCLOS ED AND DEDUCTION ON ACCOUNT OF INTEREST PAID AGAINST `INCOME FROM OTHER SOURCES WAS CLAIMED BY THE ASSESSEE IT CANNOT BE SAID THAT THERE WAS A FAILURE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT. 8. IN VIEW OF THE FOREGOING DISCUSSION WE ARE OF THE CONSIDERED OPINION THAT NO FAILURE CAN BE ATTRIBUTED TO THE ASSESSEE IN DISCL OSING FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HER ASSESSMENT. AS ADMITTEDLY N OTICE U/S.148 WAS ISSUED BEYOND THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVA NT ASSESSMENT YEAR WE ARE OF THE CONSIDERED OPINION THAT THE REASSESSMENT WAS INVALI DLY INITIATED. WE THEREFORE SET ASIDE THE INITIATION OF REASSESSMENT OF THE ASSESSM ENT AND THE CONSEQUENTIAL PROCEEDINGS FLOWING THEREFROM. 9. IN VIEW OF OUR DECISION ON GROUND NO.1 BY THE ASSESSEE ON THE REOPENING OF ASSESSMENT WHICH STANDS ALLOWED THERE IS NO NEED FOR ADJUDICATING THE OTHER GROUNDS OF THE ASSESSEES APPEAL OR THAT OF THE REV ENUE. ITA NOS.6135 & 7107/MUM/2008 SMT.SHYAMLATA PODDAR. 5 10. IN THE RESULT THE APPEAL OF THE ASSESSEE IS AL LOWED AND THAT OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THIS 21 ST DAY OF MAY 2010. SD/- SD/- ( VIJAY PAL RAO ) ( R.S.SYAL ) JUDICIAL MEMBER ACCOUNTANT M EMBER MUMBAI : 21 ST MAY 2010 . DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENTS. 3. THE CIT CONCERNED 4. THE CIT(A)-XVIII MUMBAI. 5. THE DR/ITAT MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI.